Paper water and wet water

A Colorado water right is a decreed amount at a decreed point for a decreed use, with a date that fixes its place in line. Listings quote the amount. The amount is real, and it is also the ceiling rather than the delivery: it is what may be taken when the river has it and the right is in priority, which on an over-appropriated stream in an ordinary August is often neither.

The state measures this. Division engineers record diversions at structures, year by year, and the records go back to 1909. Set the decreed amount beside the diverted amount over the last decade and the right stops being a paragraph and starts being a quantity.

The first question is whether anybody measured at all

That third figure is the one nobody expects. For tens of thousands of structures the state’s own record says, in as many words, that diversion records are NOT KEPT. That is not a gap in our data and it is not an oversight by the division engineer: it is a recorded fact about the structure, and it means no measurement of that right exists to be produced in any proceeding, by anyone.

A report that quietly showed nothing for those would be making the most dangerous statement available, which is to imply zero use where the truth is no measurement. So the three cases are kept apart and named: measured and here is the series, expressly not kept, and nothing found. The difference between the second and third decides whether it is worth anybody’s time to go looking.

A wide gap does not always mean a weak right

Most rights that are measured at all divert in every measured year. The tail is what matters. A right that diverts well under its decree is not automatically weak. The owner may not have needed the water, the ditch may have been out for repair, or the call may simply have been on. But sustained non-use is the fact abandonment is argued from, and it is also the fact a buyer is entitled to know before the number in the listing becomes the number in the price.

The other direction matters more than people expect. A right that has diverted close to its decree in most years is a right with water behind it and a record to prove it, which is worth more than a larger decree that has not been exercised since the seventies. Sellers rarely lead with this because it takes work to assemble; it is the strongest thing a seller with a good right could be saying.

Which ground the water actually reaches

A decree names a structure. It does not say what that structure waters, and the question a buyer standing in a field actually has is which ditch serves this ground and what else it serves. Colorado publishes the other half separately: an irrigated-lands mapping, redone every few years by division, that names parcels with the crop growing on them, the irrigation method, and the structures supplying each one.

Neither agency publishes the join. Computing it is what turns "the J & M Hughes Ditch exists" into "it waters 38 mapped acres of flood-irrigated grass pasture across four parcels", which is a quantity a reader can price.

The size distribution is the part people get wrong. The word "ditch" summons a canal company with a board and a paid superintendent, and two thirds of Colorado structures water under a hundred acres. That is four neighbours and a rotation agreement, which is a different thing to buy into, and it is also why the governance question on a shared ditch is usually answered by a phone call rather than by a bylaw.

Set against the diversion record it does something better still. Acre-feet diverted over acres served is a duty of water, and a duty far outside what the crop and the method need is the first sign that the paper and the ground have come apart.

Historical consumptive use

If the water is ever to be moved or changed to a new use, none of the decreed amount transfers. What transfers is the historical consumptive use: the water actually consumed by the historical use, measured over a representative period, with return flows preserved so other users are left as they were.

A change of water right may be approved only on terms that prevent injury to other appropriators, and the water available to change is limited to the historical consumptive use of the right, with return flows maintained in time, place and amount.

C.R.S. 37-92-305(3)

This is why the diversion record is the first document an engineer asks for in a change case. It is the evidence historical use is quantified from, and a right with a thin record is a right that will be expensive to change and may quantify at a fraction of its face amount. The report carries the state’s own consumptive-use benchmark for the district alongside the diversions, which is not an engineer’s quantification and is not offered as one. It is the order of magnitude, so somebody can decide whether to pay for the real one.

What the report does with this

• Every decreed right of record on the section, with its amount, its use, its appropriation and adjudication dates
• The diverted amount by year at the structures those rights are filed against, set against the decreed amount
• Structures where the record says diversion records are not kept, said in those words
• Which mapped parcels each structure waters, with the crop and the irrigation method on them
• Whether the structure has appeared on a decennial abandonment list
• What the state’s own analysis says about how many days a year this right has been out of priority

This is general information about Colorado law and records. It is not legal advice and not a title opinion. What applies to a particular piece of ground is settled by the documents filed against it.